A commentary on the case of Abdelbaset al-Megrahi, convicted of the murder of 270 people in the Pan Am 103 disaster.

Friday, 23 September 2016

Justice Committee to resume consideration of Megrahi petition

[Justice for Megrahi’s petition (PE1370) seeking an independent inquiry into the Lockerbie investigation, prosecution and trial features on the agenda for the meeting of the Scottish Parliament Justice Committee’s meeting to be held on Tuesday, 27 September 2016 in Holyrood Committee Room 2, beginning at 10.00. The committee clerk’s note on this item reads as follows:]

Terms of the petition

PE1370 (lodged 1 November 2010): The petition on behalf of Justice for Megrahi (JFM), calls for the opening of an inquiry into the 2001 Kamp van Zeist conviction of Abdelbaset Ali Mohmed al-Megrahi for the bombing of Pan Am flight 103 in December 1988.

Recent background to the petition in Session 4

Scottish Criminal Cases Review Commission

17. On 5 November 2015, the Scottish Criminal Cases Review Commission (SCCRC) announced that: “it is not in the interests of justice‖ to continue with a review of the conviction of the late Abdelbaset Ali Mohmed Al Megrahi. Consequently, the application has been refused.” In a news release published that day the Commission‘s Chairman, Jean Couper said:

“A great deal of public money and time was expended on the Commission‟s original review of Mr Megrahi‟s case which resulted, in 2007, in him being given the opportunity to challenge his conviction before the High Court by way of a second appeal. In 2009, along with his legal team, Mr Megrahi decided to abandon that appeal. Before agreeing to spend further public money on a fresh review the Commission required to consider the reasons why he chose to do so. It is extremely frustrating that the relevant papers, which the Commission believes are currently with the late Mr Megrahi‟s solicitors, Messrs Taylor and Kelly, and with the Megrahi family, have not been forthcoming despite repeated requests from the Commission. Therefore, and with some regret, we have decided to end the current review. It remains open in the future for the matter to be considered again by the Commission, but it is unlikely that any future application will be accepted for review unless it is accompanied with the appropriate defence papers. This will require the cooperation of the late Mr Megrahi’s solicitors and his family.”

Operation Sandwood

18. Operation Sandwood is the operational name for Police Scotland‘s investigation into the nine allegations of criminality levelled at the Crown Office and Procurator Fiscal Service, police and forensic officials involved in the investigation and legal processes relating to Megrahi‘s conviction. The allegations range from perverting of the course of justice to perjury. Police Scotland‘s report of this operation is expected to be completed before the end of the year. The S4 Committee received a number of updates from JFM asking that an “independent prosecutor” be appointed to assess the findings of Operation Sandwood.

19. The S4 Committee wrote to the Lord Advocate seeking his views on the appointment of an “independent prosecutor” as proposed by JFM. His response outlined arrangements made by COPFS to employ independent Crown Counsel not involved in the Lockerbie case to deal with the matter. JFM rejected the involvement of independent Crown Counsel as they consider it does not represent an “independent, unbiased and constitutionally sound approach”. The S4 Committee sought further information regarding the appointment of an independent prosecutor in September 2015 to which the Lord Advocate reiterated his earlier response.

20. On 5 January 2016, the S4 Committee wrote again to the Lord Advocate, asking him to respond to JFM‘s most recent submission which questioned the Lord Advocate‘s intention to appoint Catherine Dyer, the Crown Agent, as the Crown Office official responsible for co-ordinating matters with the “independent counsel”. (Ms Dyer has since retired from the COPFS.)

21. On 29 February 2016 the S4 Committee received a response from the Crown Agent setting out the steps which will be taken by COPFS to ensure that the police investigation into allegations of criminality by JFM in connection with the Lockerbie case, known as Operation Sandwood, are dealt with appropriately. The Crown Agent attached copies of previous correspondence from 26 June 2013 setting out the specific arrangements which pertain to Operation Sandwood and from 25 February 2013 and 25 March 2013 which include general details of how COPFS deals with allegations of criminal conduct by prosecutors or former prosecutors.

Session 4 Legacy Report

22. The S4 Justice Committee last considered the petition on 1 March 2016. It agreed to seek further information about the progress of Operation Sandwood and to keep the petition open. In its Legacy Report in respect of PE1370 the S4 Committee stated—

PE1370 lodged by Justice for Megrahi (JfM) in November 2010 calling for an independent inquiry into the conviction of Abdelbaset Ali Mohmed al-Megrahi for the bombing of Pan Am flight 103 in December 1998. Much of the Committee‟s recent activity has focused on receiving progress updates on Police Scotland’s “Operation Sandwood‟. This operation is its investigation into JfM‟s nine allegations of criminality levelled at the COPFS, the police, and forensic officials involved in the investigation and legal processes around Megrahi‟s conviction. In addition, the Committee has been examining the process for the COPFS appointing independent counsel to examine the findings of Operation Sandwood when available. We requested a final update on progress with Police Scotland‟s investigation in March 2016 for consideration by our successor committee.

Latest information available

23. The most recent response from Police Scotland was received on 11 March 2016 and can be found in Annexe E. It states that the Deputy Chief Constable expected to receive a detailed report by mid May. This report and its findings would then require be scrutinised and assessed by the independent Queens Counsel appointed by Police Scotland. Police Scotland confirmed that a definitive timetable to complete the process could not be provided at this stage. There has been no public statement since then, of which the clerks are aware, indicating whether this process has proceeded as indicated in the 11 March letter.

24. On 2 June, the issue of comments about the Megrahi case made in a recent book by former Justice Secretary Kenny MacAskill, were raised during First Minister‘s Questions. The First Minister stated that "it is not for me, for any First Minister or for any member of the government to decide that a conviction is unsafe. That is a matter for the courts of the land. That is the case in this case and it is the case in any other criminal matter." She added that it remained open for Megrahi's close relatives to ask the SCCRC to refer the case to the appeal court: “Ministers have repeatedly made clear that they would be comfortable if that was to happen but that is the process that must be undertaken if this case is to be looked at by the appeal court."

26. The Petitioner for PE1370 has provided a written submission which can be found in Annexe F.

Options for action on petition PE1370

27. The Committee is asked to consider and agree what, if any, action it wishes to take in relation to the petition (see paragraph 6* for possible options).

28. As ever, there is the option of closing the petition. If the Committee wished to keep the petition open, it might wish to consider writing to Police Scotland seeking confirmation the Operation Sandwood report has been received and trying again to seek clarity on the future timetable for completion of the process.

*Options available to Committees considering petitions

6. Once a petition has been referred to a subject Committee it is for the Committee to decide how, or if, it wishes to take the petitions forward. Some examples of how this can be done are set out below although the list is not exhaustive. The Committee can choose to:

Keep the petition open and write to the Scottish Government or other stakeholders seeking their views on what the petition is calling for, or views on further information to have emerged over the course of considering the petition;

Keep the petition open and take oral evidence from the petitioner and / or stakeholders;

Keep the petition open and await the outcome of a specific piece of work, such as a consultation or piece of legislation;

Close the petition on the grounds that the Scottish Government has made its position clear or that the Scottish Government has made some or all of the changes requested by the petition, or that the Committee, after due consideration, has decided it does not support the petition;

Close the petition on the grounds that a current consultation, call for evidence or inquiry gives the petitioner the opportunity to contribute to the policy process.

[RB: The various Annexes referred to in the clerk’s note, including the submission from Justice for Megrahi, can be read here.]

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